402 F2d 455 Lauchli v. United States

402 F.2d 455

Richard A. LAUCHLI, Jr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 19138.

United States Court of Appeals Eighth Circuit.

Nov. 1, 1968.

Lewis E. Pierce, of Pierce, Duncan, Beitling & Shute, Kansas City, Mo., for appellant. Richard A. Lauchli, Jr., pro se.

Calvin K. Hamilton, U.S. Atty., and Anthony P. Nugent, Jr., First Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before VOGEL, Senior Circuit Judge, and LAY and BRIGHT, Circuit judges.

PER CURIAM.

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1

Defendant Lauchli was convicted of transferring a .50 caliber, Browning, air-cooled machine gun on May 27, 1965, without having paid the special transfer tax required by 26 U.S.C.A. 5811 in violation of 5861. Upon conviction Lauchli was sentenced to 18 months in custody of the Attorney General to be served consecutively with another sentence he was presently serving.

2

This case was tried prior to the United States Supreme Court's decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). Under these circumstances, although defendant did not raise the privilege of self-incrimination at the trial his privilege is not waived. Cf. Grosso v. United States, 390 U.S. at 70-72, 88 S.Ct. 709; Drennon v. United States, 393 F.2d 342 (8 Cir. 1968).

3

Payment of the transfer tax under 5811 requires self-incriminatory conduct as invidious as payment of the gambling tax under Grosso v. United States, supra. It is now settled that where compliance with a federal statute results in an admission of an offense under state law,1 the privilege of self-incrimination may be raised in a federal prosecution. See DePugh v. United States, 401 F.2d 346 (8 Cir. 1968); and cf. Reed v. United States, 401 F.2d 756 (8 Cir. September 26, 1968.)

4

Judgment reversed and remanded with directions to dismiss.

1

The Missouri statute on illegal possession of a firearm reads:

'It shall be unlawful for any person to sell, deliver, transport, or have in actual possession or control any machine gun, or assist in, or cause the same to be done. Any person who violates this section shall be guilty of a felony and punished by imprisonment in the state penitentiary not less than two nor more than thirty years, or by a fine not to exceed five thousand dollars, or by both such fine and imprisonment; provided, that nothing in this section shall prohibit the sale, delivery, or transportation to police departments or members thereof, sheriffs, city marshals or the military or naval forces of this state or of the United States, or the possession and transportation of such machine guns, for official use by the above named officers and military and naval forces in the discharge of their duties.' Mo.Ann.Stat. 564.590 (1953).